By The AP's Own Logic, The AP Ripped Off Obama

from the creative-thinking... dept

Law professor Doug Lichtman has a monthly podcast (on an annoyingly flash-only website) called the Intellectual Property Colloquium. A few months back, we discussed the episode that looked at file sharing damages. I must admit that I tend to disagree with a significant percentage of Lichtman's conclusions on intellectual property, but unlike many copyright maximalists, I tend to believe he's much more intellectually honest on these issues. His positions don't seem to come from a "more is absolutely better because it makes me/my clients more money" position, but he honestly tends to believe that greater copyright leads to a greater net outcome, and tends to argue reasonably about it -- though, I believe some of that reasoning, and the assumptions that underpin it are faulty.

In the latest podcast, Lichtman and three guests discuss "fair use" with most of the focus being on the Shepard Fairey case. Lichtman talks with one of Fairey's lawyers (Mark Lemley), a lawyer for the AP (Dale Cendali) and finally the General Counsel of the NY Times, Ken Richieri. It won't surprise many, I'm sure to say, that I strongly agreed with the points Lemley made, in explaining (a) how Fairey's use is almost certainly fair use. But the debate between Lemley and Lichtman is still quite worthwhile.

The key point that Lichtman keeps jumping back to is an interesting attempt to justify blocking fair use on what (at first glance) appears to be free market principles. That is, Lichtman states, repeatedly, that because Fairey could have licensed an image of Obama prior to making his artwork, there shouldn't be fair use. His argument is that this is as free market approach, and that fair use might not even need to be considered. To Lichtman, if there is a "functioning" market that can be made, there's no fair use. At a first pass, this may sound quite appealing to free marketer/libertarian types. But it's wrong. That's because what he's talking about is not a true free market at all. It's an artificial market, based entirely on a gov't backed artificial scarcity. It's a market built on a monopoly, which is no free market at all.

It also seems to go against the very intent of copyright itself, in that it suggests that as long as there's a "reasonable" tollbooth that can be placed on things, there shouldn't be fair use. But if that tollbooth is actually creating friction and decreasing, limiting or hindering creative output, then it can and should be seen not as "promoting the progress," but the exact opposite. Lemley does a decent job on the spot to warn against the frictions caused by such a "permission" culture, in that it's quite unreasonable in many cases to have to get permission, but Lichtman dismisses this as a minor issue, or really one that can be worked out separately. To me, that suggests a rather distinctly poor assumption about creativity and creative culture these days. Requiring ad hoc permission on any potential use would create massive chilling effects on all sorts of creativity. Lichtman also suggests that a third party intermediary (perhaps YouTube) could serve as a clearinghouse for such rights, but that too creates all sorts of problems.

Overall though, this highlights the problem I have with those who continue to support strong copyrights under a "free market" perspective. A true free market for a good with infinite supply will price that good at zero. But copyright distorts that market to limit that possibilities. It's as if some believe that any market represents a free market, even if that market is massively inefficient. Back in the days of the sugar monopolies, there was "a market" for sugar, but it was not a fair market price, because of the gov't backed monopoly. Or, to make the point clearer, today there is no "market" for air, despite the fact that it's quite valuable to all of us mammals who like to breathe. We could, in theory, create a gov't backed market for air, recognizing its value, and forcing people to pay to breathe, but most people inherently recognize how inefficient and wasteful that would be. Yet, content has the same fundamental (effectively) limitless supply as air (if anything, air is more limited). And yet, some think it needs a similar artificial and inefficient market.

As for the rest of the podcast, Cendali's defense of the AP's position was an incredible stretch (and, it was disappointing that Lichtman softballed his responses to her, pretending to "channel" what Lemley might say). Her defense was effectively: "The AP relies on licensing to survive. We need to survive. If what Shepard Fairey did was fair use, then it would destroy the AP, thus it can't be fair use." That's wrong on a variety of levels, and Lichtman barely touched on any of them. The purpose of copyright isn't to protect the business model of a single company. I could create a company that is harmed by fair use of my works, but that doesn't mean they're not fair use. Cendali also induced a guffaw from me in response to Lichtman's question about why the AP didn't notice the fact that its image was being used. Her response was that since the AP has so many images, it would be impossible to track them all and see if they're being used. Indeed, but no one was asking that. What Lichtman asked (and failed to follow up on) was why the AP didn't notice that this image -- which was being used everywhere -- was based on an AP image. No one expected the AP to track all its images, but you would think with such an iconic image getting so much coverage, that the AP would notice.

Cendali, keeps trying to suggest that the Mannie Garcia photo was something special, but fails to explain (even Lichtman pushes back somewhat, and Cendali answers a different question) what parts of the photo are actually protectable under copyright. She basically just says that because Garcia was a professional photographer, that the work is clearly covered by copyright. That's not how copyright works, though. She also keeps saying that because Fairey picked this particular photo it proves that the photo had something special. But, if he'd picked a totally different photo, she'd say the same thing. The simple fact is that Fairey could only pick one photo to make this picture, and this is the one he chose:

"He could have selected any one of probably hundreds if not thousands of photographs, But he selected this particular photograph, and he selected it for a reason, as he's already stated in various interviews. He was looking for a particular photograph that presented Obama in a particular way, in a hopeful way, in a way looking forward to the future... This wasn't just any random photograph... He was looking for a particular photo... and for him to now minimize that is not fair."

No, what's not fair is claiming that any of that is the AP's to own. None of it. Not a single part of it was. All of that -- the hope, the way he was looking, was simply there. What made him choose it was the look on Obama's face -- which is not Garcia's creative output, and thus cannot be covered by copyright. In fact, the most frustrating thing of all is that Cendali repeatedly claims that Fairey was ripping off Garcia (and the AP), but misses the obvious problem with that argument: which is that if her argument is correct, then the AP and Garcia also ripped off Obama, since it was his creativity in looking the way he did and making the facial expression he did. Once again, such externalities are apparently only acceptable when the AP benefits. But, Cendali seems to ignore that, and Lichtman lets her get off, noting that he basically agrees with her.

The final guest was actually a pleasant surprise. Richieri notes that he's not a copyright lawyer, but a newspaper lawyer, and thus doesn't approach things from an "ownership" perspective, but a "fairness" perspective, and notes the importance of fair use in the news business. He doesn't add too much new to the conversation, but it is refreshing to hear someone who, unlike the AP, seems to recognize that trying to own every last word/phrase/headline doesn't really make much sense.

Overall, the podcast is worth listening to, but the Cendali section may involve a bit of headbanging for it being so blatantly mistaken on the very basics of copyright law.

It doesn't matter...

It doesn't matter what Obama's face looked like in the photo, what matters is whether the use of the photo was permitted by the AP. That's all the AP had to say, not any of the dumb arguments I read about in this post.
-Nikki-

Re: It doesn't matter...

It doesn't matter what Obama's face looked like in the photo, what matters is whether the use of the photo was permitted by the AP. That's all the AP had to say, not any of the dumb arguments I read about in this post.

Copyright law is quite specific in that it only covers the creative expression of the creator of the content. Obama's look was not created by the photographer, and thus it's questionable if it's covered by copyright at all. It's not based on what the AP says. It's based on what the law says.

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Mike, this is a real stretch. While I consider Fairey's use to be highly likely to be fair, the law on this is pretty straightforward regarding whether the original photograph is protected by copyright, and it most certainly is. It matters not at all what Obama "looked" like, what his expression was. If Fairey used the photograph as inspiration to paint a likeness of Obama with that expression, none of this would have been likely to come up. But Fairey's image, less the coloration and removal of the background, is a nearly exact duplicate of the original photo, and he admits that it's the same.

Questions about whether the photo was "special" because of the subject's expression have no bearing on whether it was copyrighted. This is not about Obama's "look," it's about a particular use of a copyrighted photograph and whether that use was transformative enough to qualify as fair use and not infringement.

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While I consider Fairey's use to be highly likely to be fair, the law on this is pretty straightforward regarding whether the original photograph is protected by copyright, and it most certainly is.

You are correct that the law is pretty straightforward, and it says that it is only the *original expression* supplied due to the *creator* of the content that is covered. The entire photograph is not.

Questions about whether the photo was "special" because of the subject's expression have no bearing on whether it was copyrighted. This is not about Obama's "look," it's about a particular use of a copyrighted photograph and whether that use was transformative enough to qualify as fair use and not infringement.

There is a tremendously valid question there -- which is discussed in the podcast itself. The question is what parts of the photograph are covered by copyright. The answer is only the original expression due to Mannie Garcia. To claim that it's not about Obama's look is flat out wrong.

You and I disagree on a lot, based on opinion, but this time you've got your facts wrong.

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You and I disagree on a lot, based on opinion, but this time you've got your facts wrong.

Nonsense. You've argued here and in other responses to this post that the photograph is not covered by copyright, which is out and out incorrect. Even Fairey is not arguing that since he's claiming his use was fair use.

The fact that Obama has his head tilted in a specific way, was gazing in a specific direction, had a specific expression on his face and was sitting against a specific backdrop are indeed not copyrightable. But given that the photographer had positioned himself at a specific angle, chosen specific a specific lens and camera settings, chose a specific focus, and chose a specific instant in time to capture Obama's particular expression are all elements of the creative nature of the photograph and why the photographic image is subject to copyright.

Yes, Fairey chose that photograph on which to base his work because of Obama's "look" but the important element that you seem to miss is that it is Obama's "look" as captured in a specific photographic image.

Fairey didn't just take elements of the "look," he took the specific copyrighted image and photoshopped it (and then registered the copyright to his version).

I've said here in the past that, in my opinion, Fairey's use was transformative enough to qualify as fair use. That was based on discussions here and my reading of various news items. Having actually read Fairey's complaint, and AP's answer and counter-claim, I'm not so sure that's true.

Fairey claims that he used a photo of Obama and George Clooney as his inspiration, and using only a small portion of that photo. AP presents pretty convincing evidence that this is not the case. The "cropped" close-up photo, the one that matches Fairey's image almost exactly, was a separate photo from the one with both Obama and Clooney. The part of the larger photo showing Obama has a number of differences from the separate photo of just Obama, including what can be seen of the flag in the background, lighting and focus.

Fairey also seems to be quite aggressive at going after people who proceed to apply the same level of "transformation" to his work. I wonder what he might think if I were to take his image, flip it, change the colors, and sell it on merchandise? Fairey's past actions would indicate that I'd be sued for infringement pretty quickly.

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Please correct me if I'm wrong, a link with a reliable source would be nice and surprising but,

Photography is treated the same as any other artwork assuming there are no rights covering what your photographing. You are credited with creating the photography, and everything it it as it pertains to it.

Re: It doesn't matter...

Once again, another Techdirt article that attempts to muddy the waters around copyright.

God damn it's easy. Obama at a public event. News reporter takes a picture. That picture is copyright. No, it doesn't mean they own the rights to Obama's face, they own the rights to that picture of Obama's face.

People who attempt to muddy the waters are just trying to cover up for the basic facts of the case: The "art work" used the digital image of the photograph as it's basis, not by looking at it and duplicating it, but by actually using the digital image.

It's not difficult, unless you are so anti-copyright that you are attempting to create outrage where none should exist.

Re:

Once again, another Techdirt article that attempts to muddy the waters around copyright.

Ha! It ain't me muddying the waters. Have you followed copyright law for very long? It's been middied repeatedly -- mainly by folks (such as the AP) continually trying to twist it to their advantage.

God damn it's easy. Obama at a public event. News reporter takes a picture. That picture is copyright. No, it doesn't mean they own the rights to Obama's face, they own the rights to that picture of Obama's face.

That's not what the law says, no matter how much you may wish it to be the case.

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Discussing who benefits from "externalities" does muddy the waters a bit. And as noted above, the law does indeed say that the photographer has a copyright in the photograph, which he apparently transferred to AP. So the statement "it doesn't mean they own the rights to Obama's face, they own the rights to that picture of Obama's face" is entirely accurate.

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Discussing who benefits from "externalities" does muddy the waters a bit. And as noted above, the law does indeed say that the photographer has a copyright in the photograph, which he apparently transferred to AP. So the statement "it doesn't mean they own the rights to Obama's face, they own the rights to that picture of Obama's face" is entirely accurate.

Again, you are incorrect. Copyright only applies to the parts of the work that are new and unique creative expression. This has been held in countless rulings.

You do not get copyright on "the photograph." You get copyright on the expression that is new and unique and due to the photographer.

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Mike, every photograph is a new and unique expression.

That is not what the law says *at all*. First, it's not just "new and unique expression." Copyright law is quite clear here. I can cite any number of legal decisions, but let's go with Leigh v. Warner Bros.:

"Leigh's copyright does not cover the appearance of the statue itself or of Bonaventure Cemetery, for Leigh has no rights in the statue or its setting. See Franklin Mint Corp. v. National Wildlife Art Exch., Inc., 575 F.2d 62, 65 (3d Cir.1978) (artists have no copyright in the "reality of [their] subject matter"); 4 Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 13:03[B][2][b] (1999) (noting that appearance of objects in the public domain or as they occur in nature is not protected by copyright). Nor does the copyright protect the association of the statue with the Midnight story. Leigh may have been the first to think of the statue as evocative of the novel's mood and as an appropriate symbol of the book's themes, but copyright law protects only original expression, not ideas. See 17 U.S.C. § 102(a)-(b); Feist, 499 U.S. at 345, 111 S.Ct. at 1287 (citation omitted); Herzog, 193 F.3d at 1248 (citation omitted)...."

Really, you need to talk to better lawyers, the ones advising you are a little to slanted to your own views rather than reality.

Heh. That's simply not true, but okay... if you want to go on denying reality.

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Nobody is claiming that the CONTENT of the image (ie Obama, or the room, or the background) is copyright (because it isn't) but that the unique image is copyright automatically as the shutter clicks.

No. The image is not protected. Only the parts of the image that are considered unique expression. As is made clear in the quote, copyright DOES NOT cover everything associated with the image.

While all of that is true, you notice that not a single world of this has anything to do with a person, a news event, etc. It talks about inanimate objects, not people.

Um. Try the rest of that ruling. For example: "artists have no copyright in the "reality of [their] subject matter"" or "appearance of objects in the public domain or as they occur in nature is not protected by copyright"

So nice try, but you remain wrong. You can keep pretending, but the courts rule against you almost every time (a few lame exceptions).

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Sorry, the case you cite once again is about certain objects in an image, not the image itself. The image as a whole is copyright, but some of the objects in it are not.

If you can't see the difference, I can understand why many of your posts are wildly inaccurate. I mean, seriously Mike, this is the simple stuff. If you can't understand that simple difference, how can anyone think you right on any other topic?

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Sorry, the case you cite once again is about certain objects in an image, not the image itself. The image as a whole is copyright, but some of the objects in it are not.

That is simply incorrect. You keep insisting something that simply is not true is true. You are wrong. 100% wrong. Copyright only covers the original expression within the image.

If you can't see the difference, I can understand why many of your posts are wildly inaccurate. I mean, seriously Mike, this is the simple stuff. If you can't understand that simple difference, how can anyone think you right on any other topic?

Heh. In the past I suggested that you take some time to educate yourself. You have chosen not to. The fact that you do not understand some of the very basics of what you talk about, and that is shown on a repeated basis is quite telling. You continue to amuse and entertain, but you really ought to educate yourself.

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Sorry to harp on this Mike, but I really do think you have this backward. Copyright law is specific that photographs are protected by copyright. The photograph itself is indeed copyrighted. Since the statute requires that a protected work be "original works of authorship" that are fixed in a tangible medium, and specifically includes a "pictorial" work (and further specifically defines this to include photographs), photographs are by law copyrightable.

Photographs, too, are subject to fair use, that is using a portion of the work for uses outlined in the fair use clause.

It's the image that is the original expression, which is why the photograph is copyrightable. That protection does not extend copyright to the subject matter, which is what I think you're trying to get at (though I've been apparently wrong in the past when making such judgments).

Obama's expressions in general are not copyrightable, though the capture of them in a photograph is. Obama could recreate the pose down to the detail and photographs could be taken without violating AP's copyright to it's photo, especially since this is a news photo of a public person.

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Sorry to harp on this Mike, but I really do think you have this backward. Copyright law is specific that photographs are protected by copyright. The photograph itself is indeed copyrighted.

I'm afraid I do not have it backwards. The law and the case law is quite explicit on this. The photograph is NOT copyrighted. The content of the photograph that is unique expression is. That may include the entire photograph, but it need not necessarily be so.

Since the statute requires that a protected work be "original works of authorship" that are fixed in a tangible medium, and specifically includes a "pictorial" work (and further specifically defines this to include photographs), photographs are by law copyrightable.

Yes, *unique creative expression within a pictoral work.* Not an entire pictoral work. Only the unique creative expression within it.

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Let me add this: You are playing with the pieces of an image, not the image as a whole. The image as a whole, not matter what PARTS can or cannot be copyrighted, is copyrighted in and of itself. Every image is unique, every image is a work of art in some form, thus it is copyrightable.

Watching you squirm on this one is really worth the price of admission, even if the price is FREE!

And further, that the court held that there were similarities between the photographs in question that were protected and therefore issues of fact to be decided at trial:

Although it may be easy to identify differences between the Warner Brothers still shots and Leigh's photograph, however, the Warner Brothers images also have much in common with the elements protected by Leigh's copyright. All of the photographs are taken from a low position, angled up slightly at the Bird Girl so that the contents of the bowls in her hands remain hidden. Hanging Spanish moss borders the tops of all the photographs except the soundtrack cover. The statue is close to centered in all of the pictures except one newspaper advertisement for the movie, which places the Bird Girl in the left third of the frame. Light shines down and envelopes the statue in all of the images, leaving the surrounding cemetery in relative darkness. All of the photographs are monochromatic.

These expressive elements all make the pictures more effective. The Spanish moss provides a top border to the images. The location of the statue and the lighting in the pictures together draw the viewer's attention. The lighting also lends a spiritual air to the Bird Girl. Finally, by keeping the contents of the Bird Girl's bowls hidden, the angle contributes to the mystery and symbolic meaning of the images.

A jury ultimately may conclude that the similarities between the protected elements of the Leigh photograph and the Warner Brothers still shots are not "substantial." The similarities are significant enough, however, to preclude summary judgment.

All these creative elements are present in the AP photo of Obama, which support their claim of copyright to the photo.

Re: Re:

God damn it's easy. Obama at a public event. News reporter takes a picture. That picture is copyright. No, it doesn't mean they own the rights to Obama's face, they own the rights to that picture of Obama's face.

That's not what the law says, no matter how much you may wish it to be the case.

Ow now Come on Mike, although an over simplification, he has a point. And that was a weak responce to said point.

If the artist had used the picture as inspiration that would be one thing. But he TOOK a digital copy of a copyrighted image and altered it(not by much I may add) to create "ART".

I understand your feelings in the above article and even agree with you on some point but COME ON. I understand the coward may be a dick but argue the points not the man.

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He altered it to the point that not even the supposed copyright holder could identify it - if that's not transformative, nothing is.

It is said that Michelangelo saw art in the stone before it was cut. Were I a sculptor, I'd be looking at each piece of raw marble, granite, etc in the same way that Fairey looked at the raw pictures of Obama - what he did with it is as discernable and differentiating as "David" is to a rectangular prism of rock.

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I can understand your point and am conflicted myself.

But I tend to lean toward this

He changed the colors of a digital image.
He did a good job, but that's basically what he did.
If he had started from scratch and achieved the same result, I would be inclined to agree with you. But he didn't.

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Oh gee, not really. He took the picture of obama in digital form, and did some photoshop to it, and called it "new". The reality is that under the resulting "art", is the original image. It's not a homage, it's not a tribute, it's not even a parody - it's just a digitally altered copy of the original.

Heck, I took the same image into photoshop, and played around a bit, and I can see some of the things he did. Using filters and selecting areas for coloring isn't really "art", any more than painting in a paint by numbers piece makes you an artist.

It isn't even transformative, just derivative. Without the original image, there wouldn't be art, just your "rectangular prism of rock" covered in red and green.

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The waters are muddied mostly by those who seek change, who seek to make copyright look like a bad idea, such as yourself.

Getting all over this story and giving "airtime" to people with very extreme points of view isn't doing anything to clear the situation up, rather, you are adding more silt to an already dirty stream of thought.

"That's not what the law says, no matter how much you may wish it to be the case."

It's exactly what the law says. They own the rights to that image of Obama's face for all purposes EXCEPT using the image to promote a product (likeness cannot be used without permission). But from an "art" standpoint, they own the image.

Please, if I am wrong, show me where. Then I can explain to all the people who bought images from me in the last 20 years or so how the contracts were somehow illegal.

Well, from the very start I find Doug Lichtman to be disingenuous. He calls his podcast of edited interviews the "Intellectual Property Colloquium" when it is no such thing. I minor quibble, I know, but I was expecting a round table of all the guests so that they could rebut eachother's points rather than have Dough Lichtman's favoritism show through.

"Anonymous Coward

Once again, another Techdirt article that attempts to muddy the waters around copyright.

God damn it's easy. Obama at a public event. News reporter takes a picture. That picture is copyright. No, it doesn't mean they own the rights to Obama's face, they own the rights to that picture of Obama's face."

The photographer didn't light the photo. He didn't dress the people in it. He didn't dress the set, make the things in the photo. All he did was point the camera and press the shutter, yet AP claims all the creativity in the photo belongs to the photographer, not to anybody who contributed to the Mise en scène, none of which was created by the photographer.

In a IP maximalist world AP would have had to get trademark/copyright permission from the maker of every object and article of clothing in the photo, and from the lighting company who installed the "lighting design", and the architect of the building interior, and the paint company who's trademarked color is on the wall--not to mention talent releases from all persons in the photo. That's the road AP is trying to drive us down, but doesn't/realized or admit that it is actually doing.

In the long run, this suit could hurt AP. AP routinely photographs other people's copyrighted works and sells them. As, IIRC, the amici in the suit have pointed out, AP actually offers for sale photographs of paintings that were part of events covered by AP, long after the newsworthiness of the event has passed--which is a far, far, far less transformative use than the Obama HOPE poster. AP is shooting itself in the foot. It needs fair use.

Re:

"In a IP maximalist world AP would have had to get trademark/copyright permission from the maker of every object and article of clothing in the photo, and from the lighting company who installed the "lighting design", and the architect of the building interior, and the paint company who's trademarked color is on the wall--not to mention talent releases from all persons in the photo. That's the road AP is trying to drive us down, but doesn't/realized or admit that it is actually doing."

Geez, you should learn something about the law before you go off on a rant.

First off, press, at a public event. Everything at that event is fair game. There is no copyright lighting design, the clothes are irrelevent, the location is cleared by the nature of the public event, etc. AP isn't trying to drive anything anywhere, it's just panicked freeloaders who fear their rights to copy someone else's work will be lost screaming bizarre absolutes and bringing up extreme ideas to try to scare us. You fail.

The HOPE poster would be in the clear if it was a hand drawing of something. It isn't. It is very clearly the digital image (rights owned by AP) used as the basis for the work. Remove the AP photo, and there is no work.

How hard is it to understand that?

The rest of your post is just a massively bad attempt at scare tactics. nice try, but you are only scaring idiots.

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""In a IP maximalist world AP would have had to get trademark/copyright permission from the maker of every object and article of clothing in the photo, and from the lighting company who installed the "lighting design", and the architect of the building interior, and the paint company who's trademarked color is on the wall--not to mention talent releases from all persons in the photo. That's the road AP is trying to drive us down, but doesn't/realized or admit that it is actually doing."

Geez, you should learn something about the law before you go off on a rant.

First off, press, at a public event. Everything at that event is fair game."

You must have a reading comprehension problem. He wasn't referencing what the law currently is, he was referencing a hypothetical that he called an "IP maximalist world." that is, a world where everything is always copyright and nothing is "fair game."

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the look on Obama's face -- which is not Garcia's creative output, and thus cannot be covered by copyright.

I'm not entirely convinced by this argument. I'd say capturing that look on Obama's face has a creative element in it. He had to get into the right position, press the button at the right moment and much more. Otherwise there's no creative output in nature photography either, after all nature has created the light, the view, the landscape, the wildlife and whatever else is there.

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"I'm not entirely convinced by this argument. I'd say capturing that look on Obama's face has a creative element in it."

Yeah but Obama smiling and waving and making faces for people to capture also has a creative element to it and so, in as much as the photographer should be compensated for capturing the look, Obama should be compensated for creating the look. This isn't fair for Obama, he went through all the hard work of smiling and waving and creating faces that the press can capture. His creativity should be rewarded just as well. The AP should owe him half their profits that they made on the copyright.

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What is the intent? Fairey had an image in his head, he wanted Obama in such a way he could see his vision through. As far as I know Garcia was snapping photographs in the hopes he could sell one. He was not standing posed with the Camera, dismissing shots, holding his finger, waiting, waiting for the perfect lighting and position. He just snapped and snapped. Now, one MIGHT argue the AP had a goal and image in mind when they went through the pictures looking for one to buy and use, but then, that is after the fact.

I should think that nature is the same way. If you are out snapping photos with friends, or just becouse you see something pretty, or hey look there is a bear! No, it is NOT creative, and should by no stretch of the imagination be covered. Now, if you are a photographer, and you want to show the ruination of nature by man, and you go walking the stream, looking for a place where junk gathers from upstream at the town, and you set up, and you wait becouse you want a poor animal subject, and you hold, and wait until the light is dimming becouse THAT is what you see in your head, and you are not just taking photos to see what sticks, but are waiting for the artistic vision you have to show before you, isn't that, oh, I dono... DIFFERENT?

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He TOOK a digital image and changed the colors, call this fair use is analogous to me taking a digital copy of a TV show, editing the colors and calling it artwork and fair use.

I can understand if you make a legal/logical (not EMOTIONAL/GUT) argument about this being fair use as fair use is ambiguous by nature, and I can understand both sides of the argument. But to say its (legally)cut and dry is just plain ignorant.

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This is surprisingly similar to patent law.
1)The AP didn't notice that this was their image/IP until a massive search was conducted to find where this iconic creative piece came from.
2)Upon finding out this was actually a creative derivative(this is the definition of a creative derivative in my opinion, see Disney for further information) of their picture, they jumped out of their socks shouting "OMG, we own that!".
3)Lawsuit Lawsuit Lawsuit
4)???
5)Profit (sorry couldn't resist)

Sound like a familiar process?
1)don't notice that a product comes out from a big name company that could roughly be considered to be infringing on your patent(usually this goes hand-in-hand with not actually producing any products, just holding [overly broad] patents)
2)Someone notices that this big company is potentially making money from a portion of what your patent covers. Head on down to East Texas and shout at the top of your lungs "OMG, we own that!".
3)Lawsuit Lawsuit Lawsuit
4)???
5)Profit

Typical....

Some typical tactics of people who are adamant that the only correct path is the one they want, and there is NO OTHER option.

1) "If what Shepard Fairey did was fair use, then it would destroy the AP, thus it can't be fair use."

That's called circular logic. In other words "If it's true, then I'm wrong. I'm not wrong, therefore it's not true." You can't use a DESIRED outcome as proof of that outcome.

2)"unless you are so anti-copyright that you are attempting to create outrage"

hmmm accusing someone of creating outrage by using inflammatory language. Inflammatory language is ONLY used when someone wants to create outrage. This tactic is nothing more than re-direction: "I don't want you to pay attention to what I'm doing wrong, so I'm going to call attention to something that you're doing even worse; even though it's completely unrelated to the issue at hand."

Please, people, if you want to have a debate over an issue about which you have strong feelings, do so; but at least come to the debate with logical arguments, and leave the name-calling and finger-pointing at home.

He changed the colors of a digital image.
He did a good job, but that's basically what he did.
If he had started from scratch and achieved the same result, I would be inclined to agree with you. But he didn't."

No, actually, that isn't what he did. What he did was come up with a dramatic, iconic concept and execute it flawlessly.

What many people don't realize is that the AP photo in question is **not** a close up of Obama, as AP has now cropped the photo to match the HOPE poster, but rather a wide shot of a conference table.

The artist wanted a a reference of Obama's head only, found a photo, decided on a specific crop, taking only a very small portion of the photo. He then transformed it so thoroughly that neither AP nor the original photographer recognized the image as being related to anything of theirs. The artist created a unique vision, transformed a small portion of an ordinary, throw away wide shot with Obama in it into, arguably, the most recognizable iconic image of this decade. Clearly transformation, clearly fair use.

Re: Re:

Re: Re:

"Except I don't think that is the original shot,just one sort of like it."

This is exactly why I don't understand why photos can be copyrighted. Say someone stood near Garcia and took a photo at exactly the same time. The photos would be practically indistinguishable; doesn't that fact in itself destroy the possibility of copyright (*unique* expression)?

I think that any photo taken in an area where there is the possibility of another person taking the same photo (e.g., public space) _cannot_ qualify for copyright. If you stage something in a studio (e.g., a photo shoot), then photo copyright it makes sense to me.

Flash-Only Annoyance

Thank You / Flash / Copyright Law

Mike -

Thanks for the thoughtful post. A few responses:

1. I really like the Flash interface, but, after receiving some complaints like yours, I worked with my team to create a non-Flash version, too, just in case. You can access that one at www.ipcolloquium.com/mobile.

2. My point is a little more complete than the one you rebut in your main post. My point is to say that Lemley can't have it both ways. If he wants to say that there is nothing special about the photograph, then that means that he really doesn't need *that* photograph. After all, if it is not special, any of a million other Obama photos would be just as good; so why do we need to trigger fair use rather than just sending Fairey out to go license any of those many available photos? Fairey would on that theory be able to get them dirt cheap; heck, the Obama campaign itself would have given Fairey a dozen options for free, happily. If he wants to instead say that there was something special about that photograph, then his fair use story is harder. If that photo was special, the relevant copyright holder has a strong claim that it should be paid or asked before someone takes that special aspect. Lemley thus cannot simultaneously argue that the photograph is nothing great, and that his client should be protected by the fair use doctrine slam-dunk.

3. The above point is all the more important if we think courts would have a hard time distinguishing cases where the photo is run-of-the-mill from those where the photo is special. If the courts can't tell, the better option is likely to deny fair use, because that works out either way: if the photo is lame, it works because there are tons of cheap options out there; if the photo is special, it again works because that specialness typically should be protected. Now that's not to say that fair use should in general be denied or any such thing. It is only to say that, on fact patterns like Lemley's, fair use looks unattractive for these reasons.

Happy to talk more about this. And thank you for jumping into this debate. Although we disagree often, I'm a big fan of TechDirt and of your work here, and I do appreciate what you wrote -- both in tone and substance.

Re: Thank You / Flash / Copyright Law

My point is a little more complete than the one you rebut in your main post. My point is to say that Lemley can't have it both ways. If he wants to say that there is nothing special about the photograph, then that means that he really doesn't need *that* photograph. After all, if it is not special, any of a million other Obama photos would be just as good; so why do we need to trigger fair use rather than just sending Fairey out to go license any of those many available photos? Fairey would on that theory be able to get them dirt cheap; heck, the Obama campaign itself would have given Fairey a dozen options for free, happily. If he wants to instead say that there was something special about that photograph, then his fair use story is harder. If that photo was special, the relevant copyright holder has a strong claim that it should be paid or asked before someone takes that special aspect. Lemley thus cannot simultaneously argue that the photograph is nothing great, and that his client should be protected by the fair use doctrine slam-dunk.

I still don't see how that makes sense at all. Lemley's argument was not that the *photo* isn't special, but that what IS special in the photo isn't copyrightable. Fairey did like the expression on Obama's face, but that's NOT Garcia's creative expression.

The fair use argument is separate from that. It's saying that *even if* you make the case that it somehow is covered by copyright, then this transformative enough (and non commercial, etc. etc.,) that it's fair use.

You know that it's common to make such "contradictory" cases that say "a is not b, but even if a IS b we still disagree because of c."

Re: Re: Thank You / Flash / Copyright Law

"The fair use argument is separate from that. It's saying that *even if* you make the case that it somehow is covered by copyright, then this transformative enough (and non commercial, etc. etc.,) that it's fair use."

Nice way to try to wiggle out from under your own logic.

Basically, you said "even if I am wrong, it's still fair use". Can't you just for a second accept the concept that you completely blew it on image copyright? Fair use is a seperate argument, something that a court of law would decide. Completely misunderstand copyright of an image isn't, it's just your complete failure to understand a very basic copyright concept.

Re: Re: Re: Thank You / Flash / Copyright Law

Basically, you said "even if I am wrong, it's still fair use".

No, I am saying that's the argument Fairey's lawyer is making, which is pretty standard in these sorts of cases.

Can't you just for a second accept the concept that you completely blew it on image copyright? Fair use is a seperate argument, something that a court of law would decide. Completely misunderstand copyright of an image isn't, it's just your complete failure to understand a very basic copyright concept.

Nope. Again, you seem to not understand basic copyright law. Copyright *only* covers the part of the photo that is original expression created by the photographer. This is fact. I really don't see how you can deny it except in an attempt to show repeated and deep levels of pure ignorance on the subject.

What's amazing is that this has been explained to you, repeatedly. You are also the same person who has been proven wrong on historical information, on basic economics (like week 1 stuff) and on how certain industries work.

At some point, you won the prize for being wrong on nearly every single thing you write. It's impressive from afar, but you might want to do something about that.